Elements of a continuing violation. 

Thermadyne manufactures and markets metal welding and cutting products.  Thermadyne hired Appellant as a specialty markets manager.  Appellant was promoted to the position of national accounts manager, and this promotion made her the only woman employed in a sales or marketing position in the Americas Sales and Marketing Group.  Appellant’s job performance as a national accounts manager was exemplary and her evaluation stated that Appellant “has the overall best analytical mind within my team.”  “She is outstanding at identifying an opportunity and then taking the correct actions to close the deal or complete the project.”  Her annual reviews continued to be fantastic.  When there was an opportunity for a promotion, she applied. However, she was not selected even though she appeared to be significantly more qualified than the male who was selected.  After she was not promoted, Appellant discovered Thermadyne was and had been systematically paying her substantially less compensation over the years than the male (National Accounts Manager Eric Moore (Moore)).  Every year, Thermadyne’s Senior Management Group for the Americas Sales and Marketing division that included Mueller, determined the salaries of National Accounts Managers Appellant and Moore.  While both had the same job description, Appellant had more education and seniority than Moore, as well as greater job responsibilities, in that she handled accounts worth approximately $100 million in annual revenue with a much larger percentage of U.S. sales.  Moore handled accounts worth approximately $30 million in annual revenue with a much smaller percentage of U.S. sales.  Appellant discovered that in 2006, Respondents paid Appellant $18,700 less than it paid Moore; in 2007, $20,000 less; in 2008, $20,600 less; and in 2009, $20,000 less.  Respondents also provided Moore with a company car, while they did not for Appellant.  Appellant’s yearly base salary, bonuses, 401(k) match and company car allowance were all less than Moore’s.  In January 2010, after Appellant’s discovery of Thermadyne’s disparate treatment, she resigned from Thermadyne on January 22, 2010, and filed suit on April 9, 2012, for discrimination under the MHRA against Thermadyne alleging a continuing violation of the MHRA by discriminating against her for four years because of her gender.  Respondents filed a motion to dismiss Appellant’s petition on the ground that her claim of gender discrimination was barred by the MHRA’s two-year statute of limitations set forth in Section 213.111. That motion was sustained.  Appellant appealed to the eastern district that reversed determining that she pled sufficient facts to allege a continuing violation.  The requirements for timely filing under the MHRA are subject to the principles of waiver, estoppel and equitable tolling. Missouri courts recognize the concept of equitable tolling for a continuing violation in employment discrimination cases, but the plaintiff must show that the discriminatory acts were not isolated incidents, and that at least one incident occurred within the two-year statute of limitations.  Appellant had adequately alleged acts supporting a theory of continuing violation, and that at least one of the alleged discriminatory actions occurred within two years of the date Appellant filed her MCHR lawsuit.  Based on the pleading, the trial court should not have dismissed her petition.  Plengemeier v. Thermadyne Industries, Inc., 2013 WL 2402860 (Mo. App. E. D., 2013) (ED99193, 6/4/13).

Comment Howard: This case has an excellent analysis of the elements needed to show a continuing violation. It is a great place to start.